Director of Public Prosecutions v Langanke

[2019] VCC 1916

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-19-00143

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID LANGANKE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 November 2019
DATE OF SENTENCE:	20 November 2019
CASE MAY BE CITED AS:	DPP v Langanke
MEDIUM NEUTRAL CITATION:	[2019] VCC 1916

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr N. Howard	McFarlane Criminal Law

HIS HONOUR:

1David Langanke, you have pleaded guilty to one charge of grooming for sexual conduct with a child under 16, one charge of sexual penetration of a child under 16, one charge of supply drug of dependence to a child under 16, one charge of possession of a drug of dependence and one charge of handling stolen goods.

2Those crimes carry maximum penalties of ten years, ten years, 15 years, one year and 15 years respectively.  You have pleaded guilty at a relatively late date when a trial was about to commence but I accept from the submissions of your counsel that there were matters in the background that had to be all sorted out and that once they were you then were prepared to plead guilty.

3You are now on my calculation 47 years of age and the offending occurred around about three or so years ago.  You must get the benefit of that plea of guilty.  I think that remorse is probably limited but you do seem to understand the seriousness of what in fact you have done.  You must also of course get the utilitarian benefit of that plea of guilty.  Trials such as this when they occur are never pleasant experiences for anybody.

4You had have a criminal history which dates back some years and it is clear from that that your priors are mainly for drug abuse and the use and selling of drugs and really confirm matters that were put to me in the helpful written submissions of your counsel.

5A summary of the offending can be done in relatively short compass.  The complainant at the time of the offending was between 14 and 17 years of age but was under 16 at the time of the actual offending.  When I say the offending occurred between that time a relationship occurred between the two of you which involved the offending.

6He has a mild intellectual disability and I make it clear having read the submissions of your counsel for these purposes I am treating the offending as occurring after his 15th birthday.  You, yourself, at the time of the offending were between 42 and 45 years of age.  You came to know each other through the complainant's mother and I do not really need to go into the details of all that, and clearly it was the allure of certainly cannabis use.

7Between October 2014 and October 2015 when the complainant was 14 years of age it was the time when you met him for the first time.  That is purely as background material you went at one point to a bush area and used cannabis and ice with the complainant and at that point in time there were apparently sexual advances made but the complainant left and ran back to his mother's residence.

8Over a period of months you spent time together and communicated by phone and later by Facebook messenger.  When you spent time together you would smoke drugs including cannabis and ice and have very personal discussions about sexuality.  You identified as bisexual from what I gather is contained within the materials within the hand up brief the complaint regards himself or the complainant was certainly active in sexual relationships with other boys, but of a similar age.

9I should also indicate that it is clear from the materials that the complainant was also acquainted with recreational drugs.  During that period of time you showed him a collection of sex toys and pornography.

10The complainant, it would appear, throughout the time of the relationship became addicted to drugs and I do not find that that was your fault, it is just simply something that was contributed to over that time.  Over a period of time the complainant began to seek drugs from you either as a gift or a purchase in exchange for providing sexual favours.

11You supplied him with both cannabis and ice and sometimes gave him drugs for free.  On a number of occasions he paid and on other occasions agreements were made, at least for some sort of sexual behaviour.  The complainant often refused your request for sexual favours and would purchase drugs elsewhere.

12I take it from that that there was no force involved in all this.  The complainant was well aware that he could refuse such conduct and to obtain drugs it would appear he agreed to do so.  That is of little comfort when the complainant is in fact under 16 years of age but it is certainly not a situation where you were using force or threats or anything along those lines.

13The conduct that I have described gives rise in part to the first charge of sexual grooming.  On a date between October 2015 and October 2016 when the complainant was 15 and a half years of age the two of you went for a walk to Edward Hunter Reserve in Moe.

14You sat down on a log in the reserve.  You then got off the log, knelt in front of the complainant, pulled his pants down and began sucking his penis.  He did not resist.  After sucking his penis for some time you stopped, sat on the log next to him and you smoked ice using a pipe and then gave him the pipe as well.

15You then placed your hand on his penis and began masturbating him.  You then asked him to suck your penis and he refused and told you to, 'Fuck off'. You went back to your residence and then the complainant went home.  That gives rise to the part of the supply drug of dependence to a child and also sexual penetration of a child under 16.

16In these circumstances I have to sentence you for that as a one off occasion.  In any event, later on the father of the complainant found messages on his phone as I recollect which indicated the nature of the conversations that used to take place between you.

17Back in August of 2016 when he was still under the age of 16 the complainant disclosed some of the offending but no charges were laid against you.  He then turned 16, so there was no offending after that.  The consensual sexual acts continued after his 16th birthday and indeed as I understand the situation continued until after his 17th birthday.

18It is clear that whilst it is totally unlawful and reprehensible it was a relationship of sorts and as I have already indicated I am not going to treat it as one where there was force or threats used.  In any event, the complainant's sister found out about these matters and eventually police interviewed or spoke to the complainant on a couple of occasions and ultimately charged were laid against you.

19When your house was searched you were found with some cannabis and some methylamphetamine and you were also found with some stolen number plates that are of no significance in this sentencing process.  When you were arrested you denied the offending but that is not something I take into account against you.

20You have ultimately pleaded guilty and that is the main purpose of all this.  There was as I understand it a contested committal.  In simple terms that is the offending.  It has to be regarded as serious, the child was a child, he was 15 and a half.  There is no victim impact statement from him which does not in these circumstances surprise me.

21There is however a victim impact statement from his sister which describes the anxiety and difficulties that it has caused and I take that victim impact statement into account.  As I say, the offending has to be regarded as serious and calls for the application of general and specific deterrence, denunciation and there must be an appropriate punishment.

22It is the situation here where gaol is inevitable.  It then becomes a question of whether that gaol should be a head sentence with a minimum term or whether a combination sentence is sufficient to satisfy all the sentencing requirements.

23Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

24Further, because of the sentence that I am going to impose in this matter you became a registrable sex offender and I must advise you the reporting conditions will be for life.  If you could accompany my associate to the dock please, Mr Howard, to get this signed?

25It is a situation where it is properly conceded as indicated custody is inevitable.  I take into account the significant delay that has taken place here.  I am not buying into why or how that all came about but the offending would appear to have first come to light some three years or so ago and it has taken this long to come on before the courts.

26Part of that obviously would have been your denials but it has been a significant period of time that has in fact elapsed.  As I have indicated on my calculations you are now 47.  You were the youngest of five children.  Your mother is currently in the secondary stage of Alzheimer's disease and you still get along with her.

27Your father passed away when you were aged 12 months and your mother never remarried.  You left school in Year 8 and were attending Doveton Secondary School and you have no formal training or qualifications and have worked in various places, including as a chef.

28It is clear that when you were around about 16 and left home to work was when you were introduced to alcohol and drugs and you have used cannabis and methylamphetamines ever since.  You state that your drug use is under control but you have never been able to actually cure yourself.

29The prior convictions, as I have indicated, support that.  At one stage some years ago you entered Windana for a period of time.  That does not seem to have assisted all that greatly.  You have been examined by Mr Cunningham, a forensic psychologist, and he says that you suffer from a range of depressive and anxious symptoms with limited coping strategies and I will refer to his report in a moment.

30Your counsel's submissions go into some detail about the nature of the friendship or relationship that you had with this underage person and as I have indicated to him by and large I accept those submissions that this is not the, as is often the case, an element of the seduction of a totally inexperienced child, the criminality here lies in the very great age difference between the two of you and you were certainly in a position of responsibility towards him bearing in mind that he is of limited intellectual functioning.

31The report refers to a - that is the report of Mr Cunningham, goes to a number of aspects.  Your IQ is 85, so you are clearly not unintelligent.  He goes through the use of drugs and points out a number of factors of stressors related to potentially at least autism spectrum disorder and other matters.

32He also points out in one of the paragraphs that there is significant minimisation of the offending behaviour.  It is clear that you know it is a serious offence.  However, according to Mr Cunningham you presented with no real insight into the chain of events leading to the offending or the underlying thoughts relating to it.

33He said that you struggle to view yourself as a sex offender and whilst you understood there was no excuse for doing it you did not seem to really understand what was effectively so wrong about it.  He said in the ultimate that you would meet the criteria for diagnosis of major depressive disorder and a generalised anxiety disorder.

34He goes through your history in some detail.  You apparently upon leaving home at around about the age of 16 were in a relationship with a woman in her 30s for quite some time and she died after a motor vehicle collision as I understand it and ever since then you have struggled.

35It is clear that your life has been at a low ebb for a long period of time and I take those matters into account.  Mr Cunningham says, and I accept, 'In my opinion Mr Langanke's depression and anxiety would increase in gaol.  This is due to his difficulty in navigating social environments and regulating emotional states.  He has a history of suicide during times of heightened stress'.

36He also points out the stress will be caused by you being separated from your dogs and I understand that as well.  That in a bizarre way adds to the weight of the period of custody that you will have to undergo and I take all of those matters into account.

37Insofar as rehabilitation is concerned that is really going to be a matter for you and for Corrections upon your ultimate release.  The risk of you reoffending I would have thought in this type of situation is going to be low indeed after having undergone a custodial sentence for it.

38I have looked at the cases that were put forward by your counsel in terms of comparative sentencing and I have also looked at the Sentencing Advisory Council statistics in relation to sentencing for this offending.  Each case must of course depend on its own particular set of circumstances.

39What I am going to do is sentence you to a period of imprisonment.  You will then upon your release be placed upon a community corrections order if you agree.  That community corrections order will be for three years and will be in the terms and be with conviction and will contain the conditions as outlined by the worker who came into court saying that she had found you to be acceptable.

40Accordingly you are sentenced as follows.  On Charges 1, 2 and 3 an aggregate sentence of nine months.  On Charge 4, 30 days concurrent.  On Charge 5, 30 days concurrent.  That gives an effective sentence of nine months.  If you agree you will then be placed upon a community corrections order for the terms that I have described.

41Can I just ask you is your client withdrawing?

42MR HOWARD:  No, Your Honour, just anxiety issues coupled with what
Your Honour mentioned about his dogs and so forth and his current lifestyle.

43HIS HONOUR:  That community corrections order is signed.  I also indicate that in terms of the sentence that is involved here I have taken the view having observed the accused over a period of time that this process has essentially caused him a degree of terror and I am taking that into account in the sentencing process and I have no doubt that he will find gaol a very terrifying experience.

44MR HOWARD:  Yes, Your Honour, I suspect that is right.  I may have missed the 6AAA?

45HIS HONOUR:  I have not done that yet because I wanted him to sign that.  Just so you clearly understand this 6AAA is going to be a bit meaningless but had this proceeded to a trial and you had have been convicted I would have sentenced you to be imprisoned for a period of three years with a minimum term of two.

46That is a bit misleading because of the way it all unfolded but that is ‑ ‑ ‑

47MR HOWARD:  I accept that, Your Honour.

48HIS HONOUR:  No other orders I need to make, gentlemen?

49MR HAMMILL:  No, if the court pleases.

50MR HOWARD:  No, Your Honour.

51HIS HONOUR:  Thank you, you can take him now, thank you.  Thanks, gentlemen, and thanks for the way that was conducted too, Mr Howard, it makes life much simpler if they are conducted with that sort of concern and alacrity.

52MR HOWARD:  Thank you, Your Honour.

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